E-2 Spouse Work Authorization: How It Works and What to Check

Q: Do E-2 spouses still need to apply for a work permit?

No. If the I-94 shows an 'S' code (e.g., E-2S), the spouse is work-authorized incident to status and does not need to file Form I-765. If there is no 'S,' the spouse typically needs an EAD.

Quick Summary

Spouses of E-2 visa holders are authorized to work incident to status in the U.S. when their I-94 shows an “S” code (e.g., E-2S). In that case, a separate work permit (Form I-765) is generally not required.

E-2 Spouse Visa: Freedom and Fulfillment for Families

At Frear Law, I focus on helping entrepreneurs and their families thrive in the United States. One of the most exciting aspects of the E-2 visa is that it doesn’t just create opportunities for the investor—it also empowers their spouses. When a spouse can pursue their own career or launch a business, it opens the door to greater financial stability and personal fulfillment.

A Real-Life Family Story

I assisted a Canadian family where the husband worked in the U.S. on a TN visa and was the sole earner. His wife had valuable experience of her own but couldn’t work due to her dependent status. We explored the E-2 route: she established an IT consulting business, made a qualifying investment, and secured an E-2 visa after a successful interview in Toronto. Her husband received an E-2 spouse visa and, with the “S” designation on his I-94, became employment-authorized. He could remain with his employer, join his wife’s venture, or pursue other options—giving the entire family far more flexibility than before.

What Exactly Changed?

“S” spouse codes on I-94: Beginning January 30, 2022, I-94s for qualifying dependents include E-1S, E-2S, E-3S (and L-2S for L spouses). An unexpired I-94 with an “S” code is acceptable List C evidence for I-9.
No I-765 needed if the “S” is present: The I-94 itself documents work authorization; the EAD route remains available primarily for situations where the I-94 does not show “S.”
If your I-94 lacks “S”: You may need to file Form I-765 for an EAD, or review whether USCIS issued a notice that, paired with an eligible I-94, can document work authorization.

Old vs. New (At a Glance)

Topic	Before 2022	Current Guidance
Proof spouses can work	EAD card (I-765 approval) required	Unexpired I-94 with “E-2S” (or other “S” code) is acceptable List C evidence
Form I-765 needed?	Yes, for most spouses	No, if I-94 shows “S”
When change began	—	January 30, 2022 rollout

Sources: USCIS Policy Manual; USCIS Policy Alert (Mar. 18, 2022); CBP I-94.

How to Check Your Spouse’s Eligibility

Retrieve the I-94: After entry, get the I-94 online via CBP I-94 Lookup and confirm the class of admission shows an “S” spouse code (e.g., E-2S).
If “S” is present: Your spouse may work without an EAD; employers can use the I-94 as List C evidence for I-9 (they’ll still need a List B identity document).
If “S” is missing: Consider filing Form I-765 to obtain an EAD, or consult about whether a USCIS notice paired with your I-94 can serve as documentation in your specific case.

Common Questions

Do E-2 spouses still need to apply for a work permit?

No. If the I-94 shows an “S” code (e.g., E-2S), the spouse is work-authorized incident to status and does not need to file Form I-765. If there is no “S,” the spouse typically needs an EAD.

Can an E-2 spouse start a business?

Yes. With valid work authorization, E-2 spouses may work for any employer or establish and operate their own business.

Where can I read the official guidance?

See the USCIS Policy Manual (Vol. 10, Part B, Ch. 2) and the USCIS Policy Alert (Mar. 18, 2022). You can also verify your I-94 at the CBP I-94 site.

Note: This page summarizes general rules. Individual facts matter. If you have questions about your spouse’s I-94 or documentation, consider a consultation.